In a discussion on jurisprudence and hate speech legislation on Facebook, commentator David Benson wrote:
[The arbitrary nature of defining hate speech] why I didn’t trust a novice like myself to come up with the wording. I DO, however, think this issue has gotten to the point where some steps need to be taken.
To understand the difficulty with this statement, we must first understand what, exactly, law’s purpose is.
The purpose of law is to govern human behavior. This purpose appears to me to be so self-evident and to hardly require evidence. However, I will explain further. Any form of law, whether it be issues of justice (ie “don’t mess with other people’s stuff,”) or matters of ethics, seeks to govern human behavior: how we act in given situations, how we interact with each other, how we resolve conflicts, etc. For example, there is law regarding behavior at a funeral: it is proper to cry or be sad/somber. To laugh or be merry is generally considered inappropriate. This is an example of an ethical law governing human behavior.
If the purpose of law is to govern human behavior, it follows that law should be simple. Complex or complicated law cannot govern as effectively as simple law. With simple law, it is easy to determine when violations happen, and more importantly, it is easy to determine how to behave. If law is complicated, then such determinations are far more difficult to make. And this matter is doubly important for matters of jurisprudence and legislation, where breaking the rule leads to a loss of liberty. This is why the rules of mere justice, the fundamental arena of jurisprudence and legislation, are the most simple.
Which brings us back to David’s comment I highlighted at the beginning. If legislation defining hate speech cannot be defined by novices, then it is destined to be bad legislation. If it cannot be defined by novices, it cannot be understood by novices, and thus it cannot be practiced by novices. This would leave a wide area of grey between what is punishable and what is not, determined by experts but not by novices. And, since the vast majority of people are novices in matters of legislation and jurisprudence, such complicated law would naturally harm the vast majority of people, even if it exists for nominally virtuous reasons.